Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 180
A651/09	OPINION OF LORD ARMSTRONG in the cause GEORGE MONCRIEFF Pursuer against (FIRST) MS ANNE COOPER and (SECOND) WISHAW AND DISTRICT HOUSING ASSOCIATION LIMITED Defenders ________________

Pursuer: Anderson, QC, Hardman; Balfour & Manson LLP (for Ian Smith Watson, Solicitors, Glasgow

Defender: Mackay, QC, Thornley; Simpson & Marwick

21 November 2013

Introduction

[1] The pursuer in this case seeks damages from the second defenders, his former employers, for personal injury and loss sustained by him as the result of the manner in which the first defender, their chief executive, for whom they are vicariously liable, dealt with him during his absence from work. In the year or so preceding mid-2006, the pursuer had been greatly upset by a series of distressing events affecting members of his family. On 25 May 2006, as part of the second defenders' disciplinary process, the pursuer was called to a counselling interview at which his work performance was criticised. On 2 June 2006, on receipt of the file note of the counselling interview (in effect the minute of the meeting), the pursuer became manifestly depressed and, following certification as being unfit for work, never returned to his employment with the second defenders thereafter. His claim is that in the period from about 4 July 2006 to the date of his resignation on 9 January 2007, the first defender, in the knowledge that he was depressed and anxious, exacerbated his mental ill-health by conducting a course of correspondence with him, in particular by three letters dated 16 and 29 August and 19 September 2006 relating to the issue of his return to work, the tone and content of which caused his condition to become more chronic.

The evidence

[2] In all, I heard the evidence of seven witnesses. In addition, the parties agreed three joint minutes which related principally to the pursuer's medical records, his earnings during relevant periods and his subsequent employment by others. It was agreed that the pursuer was employed by the second defenders from 24 February 2002 until 9 January 2007 when he resigned.

The evidence relating to the correspondence

[3] The course of correspondence between the pursuer and his employers comprised the following:

(a) 4 July 2006: a letter sent by the first defender to the pursuer, in the following terms:

"You have been absent from work on sick leave since 5 June 2006. I hope you are feeling better now. However, although we have received medical certificates indicating that you are suffering 'anxiety' we do not know how severe your illness is or when you are likely to be fit to return to work. In particular, we have not been able to talk to you about this as you have declined to return Colette's calls, choosing instead to pass messages through Joyce, your wife.

As a result, I have referred you to an occupational health specialist, Cheviot Artus, who will contact you shortly to ask your consent to arrange a medical examination."

The pursuer's position in relation to the comments made in the letter was that he had not declined to return calls and Mrs Moncrieff, his wife, who took the phone calls, maintained that Mrs McKenna (Colette), his departmental manager, had never asked to speak to the pursuer. Although the referral to an occupational health specialist was unexpected by the pursuer, he did not consider it unreasonable. At that time, having been off work for about a month, he was still feeling low and could not have coped with returning to work in the context of the criticisms made of him. In cross-examination, Mrs Moncrieff thought it had been unfair to ask the pursuer to attend a medical examination after only four weeks absence from work and that it indicated a lack of compassion or sympathy. She agreed that it had been legitimate for the defenders to state that it was not known by them how severe his illness was.

(b) 4 July 2006: The pursuer also received a copy of a document entitled "Staff Referral to Occupational Health". Its text included the following:

"Absence began when employee was issued with record of counselling interview for poor performance by line manager. "

"Require to find out if/when this employee fit to return to work, and if will be fit to address any ongoing monitoring of performance."

"George has declined to speak to us but his wife tells us that his anxiety is caused by family problems. Mrs Moncrieff indicated that she was giving us details in confidence but we have since discovered that the issues mentioned are well known in the office and that George has talked about them openly. "

"Mother seriously unwell."

"Daughter's miscarriage (daughter now given birth to health child)."

"Brother attempted suicide (brother now back at work)".

The pursuer took exception to the statement that his anxiety had been caused by family problems. He considered that he had been coping with them. He had not discussed his brother's suicide at work. He was upset by the references to his brother and his daughter. His brother had not in fact returned to work and his daughter had experienced an emergency delivery involving a cord prolapse. Mrs Moncrieff said that the pursuer had been upset that the referral form made reference to his brother's attempted suicide in circumstances where it had been understood that the information had been given in confidence. In cross-examination, Mrs Moncrieff said that at a meeting with Mrs McKenna on 6 June, she had told her that the pursuer had become unwell because of family problems and that Mrs McKenna had told her that the pursuer's performance at work had been poor for some time. She accepted that the pursuer did not write to the defenders to correct the assertion that only family problems had contributed to his condition. Mrs Moncrieff considered it to have been in order for the defenders to make the occupational health referral.

(c) 10 July 2006: a letter by Mrs Moncrieff to the first defender. The letter confirmed that it was her personal decision to attend to matters concerning the pursuer's position at work. It confirmed that she had had a meeting with Mrs McKenna on a confidential basis, that there had been a phone call between her and Mrs McKenna on 12 June during which Mrs Moncrieff had said that the pursuer was still unwell and would be off for some weeks and Mrs McKenna had asked to be kept informed, and that Mrs McKenna had never made a request to speak to George and had not made any request for him to return her calls. The pursuer explained that his wife had written this letter on his behalf, as at the time, he could not cope with writing letters and had not been fit enough to do so. His wife had spoken to Mrs McKenna face to face on 6 June after his appointment with his GP and had explained to her his personal problems and the fact that he had been unwell over the weekend following his receipt of the counselling meeting file note. His wife had also spoken on the phone to Mrs McKenna on 12 June and had confirmed that he was likely to be off work for some weeks. Mrs Moncrieff confirmed that she had written the letter in response to the letter of 4 July and that it was in effect an explanation of her involvement to date. It was not the case that the pursuer had chosen to pass messages through her.

(d) 14 July 2006: a letter by the pursuer to the first defender, in the following terms:

"I was appalled to read your comments on the referral form, which are firstly untrue and secondly 'leading' before the examination takes place.

I have no objection to undertaking a medical examination or consenting to a doctor's report however I wish to have the following statements removed from any referral.

1. I have never refused to come to the phone or decline to return calls to Technical Service Manager.

2. My wife did speak to Colette in confidence and I would vehemently deny that I ever discussed 'openly' with anyone at any time, in or out of the office, the situation with my brother and indeed Colette herself told my wife during the discussion with her, 'Well we never knew'. I therefore demand to know from whom you got this information and also where they got the information that he is now back at work as this is totally untrue.

3. Daughter's miscarriage - Please explain why you find it necessary to add the comment 'now given birth to a healthy child' and what is implied by this.

I look forward to your response in due course."

The pursuer stated that he had written out this letter and that his wife had typed it for him. He felt that the reference to his daughter having given birth to a healthy child diminished the effect of the previous loss of a baby. In cross-examination, Mrs Moncrieff accepted that since the letter ended with the words "I look forward to your response", it had been appropriate for the first defender to respond in due course.

(e) 19 July 2006: a letter by the first defender to the pursuer, which included the following text:

"I am replying to your letter of 14 July 2006..."

"If there are things that look different from your viewpoint then clearly you must make the doctor/nurse aware of these things, and I have also noted all that you say in your letter.

If there are issues you wish to discuss with us (Colette, Terry or myself) then, as you maintain you are not declining to speak with us, please feel free to contact any of us directly at any time."

"Please also note that by signing the consent box you are not agreeing to everything that we have said, but only to undergoing a medical examination."

In cross-examination, Mrs Moncrieff accepted that the advice in the letter to the effect that any erroneous statement should be corrected and that consent was only in relation to the medical examination was reasonable.

(f) 29 July 2006: a letter, by the pursuer to the first defender, which included the following text:

"... it is still of great concern to me that someone has lied to you concerning my brother.

... I am fully prepared to take this matter of my confidentiality being broken further."

In cross-examination, Mrs Moncrieff accepted that the letter was an example of the pursuer continuing to engage in correspondence with the defenders.

(g) 31 July 2006: a letter by the pursuer to the first defender enclosing, as his response to the counselling interview file note, an eight page document comprising his position on the points made. In cross-examination, the pursuer confirmed that the letter and enclosure had not been drafted in response to a letter from the defenders. He also accepted that since the letter ended with the words "I ... look forward to hearing from you on this matter in due course", he had wanted his employer to engage in correspondence with him, to the extent that he would have been upset if they had not done so. He had wanted to engage in a dialogue in order to have some of the matters comprising the criticisms made of him investigated. Mrs Moncrieff explained that the pursuer had been upset by the counselling interview file note and that he had felt that he had an answer to the points made against him. His GP had said that putting things down on paper would be helpful.

(h) 3 August 2006: a letter, by the first defender to the pursuer, in the following terms:

"You submitted a medical certificate for four weeks from 26 June 2006, which has an expiry date of 21 July 2006 (i.e. last working day).

Your next certificate was submitted on 26 July which meant that from 24 July to 26 July we did not know whether you were intending to return to work or submit another certificate. As a consequence at that time you were absent without leave.

Our sick leave procedures and normal courtesy both demand that you submit your certificates in time for the period they cover, or if the timing of your doctor's appointments makes this impractical, that you keep in touch with your line manager to advise us of your intentions (or if your line manager is not available, your department head or myself).

I am also advised that you have not returned your mobile phone which is given to you for work use, and that calls have been made from the phone whilst you have been absent from work, therefore I would be obliged if you would hand this in as soon as possible."

The pursuer had been annoyed and disturbed by this letter which he considered to be an accusation. He felt the defenders were putting him under pressure. Mrs Moncrieff confirmed that on receipt of this letter, the pursuer had been upset. He had considered it to be an unfair rebuke. She had already informed the defenders how unwell he was and the delay in certification had only been caused because of difficulties to do with the GP's availability. In any event, the second certificate had been back-dated to provide continuity. They considered the content of the letter to be trivial. The matter could have been dealt with by phone rather than by a letter. At that time, their thinking was that the pursuer would be returning to work. That had been his intention. Following receipt of the letter, Mrs Moncrieff had gone to the defenders' office to return the phone. She had also written a letter enclosing a cheque in the sum of £20 to cover the phone usage costs.

(i) 4 August 2006: a letter, by the first defender to the pursuer, in the following terms:

"Thank you for the return of your phone and offer of payment through Joyce for personal calls made from your work mobile. However, I am returning Joyce's cheque. There is no charge as the tariff we have procured gives us a certain level of calls free.

My concern is simply that the phone is provided solely for work use, and as you were well aware, personal use is not allowed. There are several reasons for this but one is that the phone does otherwise become a taxable expense. As a result I found it very disappointing that you were still using the phone."

Mrs Moncrieff considered that the fact that the first defender was writing to the pursuer was a bit sad in circumstances where the defenders had been asked to communicate with her in order to take pressure of the pursuer. She accepted in cross-examination, however, that her cheque had been returned speedily and amicably. In re-examination, she thought that to express disappointment about the pursuer using his phone was not reasonable when no cost had been incurred to the company.

(j) 4 August 2006: Fitness for Work Statement, by Cheviot Artus plc, copied to the pursuer and which included the following text:

"Temporarily unfit for contracted post.

Mr Moncrieff intimated today that his general practitioner has since diagnosed that he is suffering symptoms of depression and has very recently been commenced on appropriate treatment for this condition. Prior to this he was attending his GP for anxiety symptoms related directly to issues arising from close members of his family. His GP has recently referred him to the counselling services for which there is a waiting list of 6-8 weeks.

Question 1: Mr Moncrieff has anxiety symptoms which did not appear to be work related. The recent diagnosis of having symptoms of depression which resulted in commencement of medication has made him temporarily unfit for work.

Question 2: Mr Moncrieff informed me that he was not aware of poor performance issues until he attended for a workplace counselling interview. When he received the letter two weeks later he stated that he felt rather shocked at the report. It would appear that this has had a contributory effect on his mood.

Question 4: I am awaiting a GP medical report but on information given by Mr Moncrieff it would appear unlikely that he would be able to fulfil his full duties and responsibilities for the next 2-3 months or so. He does not appear to have a previous history of nervous disorders and he should be able to fulfil the full duties and responsibilities of his job when his condition responds to treatment.

Question 6: I would recommend a phased return to aid rehabilitation back into the work place. I would recommend that this was discussed with the employee prior to him returning to work.

Question 8: After his return to full duties, whether interviews regarding his work performance is best delayed for two months to aid his recuperation and confidence building."

In relation to the content of this statement, the pursuer agreed with the answers to Questions 1 and 2. In relation to Answer 4, at that time he had not known when he would be fit enough to return to work. He confirmed that he had always disputed that his work performance had been poor. Mrs Moncrieff confirmed that the pursuer had been happy with the content of the statement.

(k) 7 August 2006: a letter, by the pursuer to the first defender, which included the following text:

"I enclose a copy of my response to the counselling interview and the note issued to me by Colette.

I look forward to hearing from you in due course."

In cross-examination, Mrs Moncrieff accepted that this letter, like those of 29 July and 31 July 2006 was an example of the pursuer choosing to engage in correspondence, and like the letter of 31 July 2006, by using the words "I look forward to hearing from you", was an example of him inviting the defenders also to engage in the correspondence. In that context, she agreed that there had been nothing wrong with the defenders responding and that indeed a response had been appropriate.

(l) 16 August 2006: a letter, by the first defender to the pursuer, which included the following text:

"I am quite willing to accept, and indeed have already accepted, your correction of the facts concerning your brother, and if our error caused you any personal distress then clearly I fully apologise. I do, however, find it disconcerting that your immediate response is to assume someone is 'lying' to me about you and therefore that you seem to have made an assumption of malicious ill-will rather than the more likely assumption that the information, which appears to be widely known at least in the broadest sense, is simply wrong in a sense that 'widely known' information sometimes is. I am not prepared to tolerate this type of accusation, presumably against other staff members, board members or contractors, unless you can give clear and good reason, as it will simply foster further ill-will and mistrust."

"In your letter of 31 July you challenge more or less every judgement that your two line managers have made about your performance. The implication is that you want someone to investigate, consider and reply. I am prepared to do this, or have that done, but I am not prepared to enter into long, argumentative and quite possibly fruitless correspondence. I would wish to discuss the issues face to face.

The problem here is that this conflicts with the advice that we are receiving from the medical examiner which is that you are currently unfit to discuss your work performance and that further interviews on this subject should be delayed until around two months after you return to work to aid your recuperation and confidence building. From your letter it would seem that you do not agree with this assessment.

My question to you therefore is, do you want to:

(i) concentrate on shortening your absence and getting well and leave the performance issues until after you have returned to work, in which case we will do nothing with performance issues until that date.

or

(ii) advise me that your express wish is that we disregard the medical examiner's advice and arrange interviews where we can discuss the points you have raised in your letter with reference to your performance and our assessment of this."

"Gas Safety Documentation

In your letter of 31 July you make an extremely serious allegation. You allege that our contractors and "the "department" had to falsify documentation to cover up "no accesses".

What you are alleging is not only a serious matter internally and in connection with our governance relationship with Communities Scotland, but is also potentially a criminal offence. As such I am under an obligation to have this fully investigated by an independent auditor.

Please clarify exactly what you are alleging. As this is such a serious matter (and the most serious matter dealt with in this letter) I wish to begin an investigation by the end of next week and therefore I require your clarification in writing by 22^nd August."

In evidence, the pursuer stated that, as with all the letters he had received from the defenders, the effect of this letter was to "bring (him) down". He felt the letter was an attack on him. He thought that the effect of this letter may have been worse than the others. He felt that the language: "I am not prepared to tolerate this type of accusation..." suggested that he was being accused without any of his points being investigated. He said that this letter had really distressed him. He had written his letter of 31 July, to which this letter was a response, because he felt that he wasn't guilty of the accusations being made against him and wanted to get that out of his system. Dr Logan, his GP, had suggested that that would be helpful. Although by writing he had been engaging in discussion, he had not felt fit enough at that time to go into work to discuss matters face to face. He felt that there were matters that could have been investigated without his participation. In relation to the suggested alternative options, his response was that it was not within his powers to make himself well. In cross-examination, he accepted that the letter contained an apology. He agreed that it was appropriate for an employer not to tolerate accusations of lying without good reason because ill-will and mistrust might result. He agreed that the counselling interview had been an informal meeting intended to avoid the need for formal disciplinary action. He accepted that the purpose of the meeting had been to bring about an improvement in performance. He agreed that there was nothing wrong in proposing the two alternative options set out in the letter and, in particular nothing wrong with the suggestion that he should wait until he was well before any face to face discussions about work performance took place. Mrs Moncrieff confirmed that this letter had really upset the pursuer. She felt that the letter meant in effect that the defenders were calling him a liar and suggesting that he was being malicious towards his colleagues. She felt that after what had gone before during the previous two months, including the effect of the family traumas, receipt of the written file note of the counselling interview and the subsequent decline in his health, this letter had left him "shattered". He had been crying when he read it. It had been too much for him to take. In cross-examination, while she maintained that the pursuer had found its tone upsetting, she agreed that it contained an apology for any error made and was in fact a response to his letter. She agreed that the defenders had been entitled to respond to his letter and that, as stated in it, "long, argumentative and quite possibly fruitless correspondence" was undesirable. She agreed that the option extended to the pursuer, to allow himself to get well before returning to work and only then to discuss work matters was a reasonable one. She agreed that the suggestion that any discussion about work performance should be deferred until he was well and back at work was reasonable. Notwithstanding that, in re-examination she stated that, in circumstances where the pursuer was depressed, she thought it had been unreasonable of the defenders to write to him at all.

(m) 19 August 2006: a letter, by Mrs Moncrieff to the first defender, comprising an answer to the five points made in the letter of 16 August and including the following text:

"I am not prepared to tolerate any more the detrimental effect on my husband's health and recovery by protracted correspondence and see no reason why you can't begin to investigate some of the issues raised before his return to try to make his position more tenable."

The pursuer stated that his wife had written this letter because she had seen the effect on him of the previous letter. The last paragraph, to the effect that investigations should be made and that correspondence was preventing his recovery, was what he had felt at the time. Mrs Moncrieff confirmed that she had written the letter after discussions with the pursuer. The pursuer had wished it to be clear that he had not spoken at work about his brother's attempted suicide. He had felt that the letters he was receiving had an accusatory tone.

(n) 29 August 2006: a letter, by the first defender to the pursuer, which included the following text:

"There has been recent correspondence going backwards and forwards between myself and yourself and your wife Joyce. As I mentioned earlier, I would prefer to avoid this type of correspondence as it is almost always counterproductive to the resolution of issues, and indeed, I believe that this is exactly what is happening in this case. I also see from your correspondence that you would also prefer the written dialogues to cease. It is therefore ceasing now unless you wish to raise issues formally as stated below. In particular I cannot and will not enter into discussions or correspondence about your personal work issues with Joyce.

If you wish to discuss issues in connection with your performance counselling interview as raised in your letter of 31 July (covering letter dated 7 August) then please formally advise me that this is the case, acknowledging that the medical advice you have received is to await your return to work and that you wish to disregard this advice. If you do this I will arrange for discussions to take place even if this is before your return to work. Unless you do this I will not address, or as Joyce puts it 'investigate' any further the points that you raise in order to challenge the views of your two managers before you return to work. I have already looked at the issues you have raised and discussed these with your managers and see no reason to change or adjust the position they have taken. I consider that I cannot look further at this without your full participation."

Mrs Moncrieff said that the pursuer had been upset by this letter. She had asked the defenders to deal with her rather than him, but there seemed to have been one letter after another. In cross-examination, she confirmed that this letter was in fact a response to the previous letter by her to the defenders, dated 19 August. She agreed that the suggestion by the defenders in this letter that the correspondence should cease was a reasonable one.

(o) 19 September 2006: a letter, by the first defender to the pursuer, in the following terms:

"I am aware that you have now been absent from work for 16 weeks. I recognise that this is a difficult time for you, as it is for us. As you may imagine your absence is causing a significant stress on our business and on your colleagues and managers, given that we are operating during a particularly demanding period.

The Committee had indicated that whilst they sympathise with your personal and current ill-health their greater concern is for the business that they are responsible for. As a result they have asked me to discuss with you your expectations of when you might be fit to return to work, and to discuss with you our developing requirements in that regard.

I would be obliged if you would call into the office to do this on Thursday 28 September at 11am. You are entitled, if you wish to bring a union representative or colleague with you.

If this time and date do not suit then please contact me to arrange one that is more suitable.

In arranging the above appointment I am aware that you consider yourself to be not well enough to discuss your performance difficulties or the circumstances surrounding the allegations you have made on the conduct/integrity of other staff and our contractors connected with gas safety. Please rest assured that I do not intend to raise or discuss these matters. At this point in time I wish solely to discuss your absence and the prospects for your return to work."

The pursuer felt that this letter indicated that what he and his wife had been saying in their letters was being ignored. He had found this letter to be particularly distressing. In cross-examination he maintained that at that time he had not been fit enough to go into work even only to discuss the limited issue of when he might return to work. Mrs Moncrieff confirmed that this letter had upset the pursuer again. She felt the defenders were pushing him to go back to work before he was ready. She thought that at that time he would not have been well enough to attend a meeting.

Other evidence

The pursuer's case

[4] Mrs Joyce Moncrieff, the pursuer's wife, was the first witness to give evidence. She was aged 60 years and had been married to him for 43 years. Throughout that time, until his resignation from his employment with the defenders in January 2007, he had never been out of work. Prior to his full-time employment with the defenders, which had commenced in February 2002, he had received a letter of commendation, dated 2 November 2001, from the first defender in relation to work done for the second defenders on a short term basis. From February 2002 until mid-2006 the pursuer had never mentioned any difficulties at work. Her impression was that he enjoyed his job and got on well with his colleagues. So far as she knew, there had been no disciplinary issues and his annual appraisals had been good. Within a period of 18 months to two years prior to mid-2006, four significant and distressing events had occurred within the family. The pursuer's mother had suffered a stroke and a heart attack, his father had been diagnosed with bowel cancer, his daughter had suffered a miscarriage and had undergone an emergency delivery involving a cord prolapse in her subsequent pregnancy, and his brother had attempted suicide. These events had an effect on the pursuer to the extent that at home he had been sad and there had been tears but there had been no suggestion of any difficulty at work.

[5] In about May 2006, he had told her that he had been called to the boardroom at work for a counselling interview with Mrs McKenna, his departmental manager, and Terry McKenna, his supervisor, at which concerns had been expressed about his performance at work. He had told her that they had been firing questions at him, and that he could not answer them all. He had appeared distressed when he got home. On the following Friday, about one week later, Mrs McKenna had given him the file note of the counselling interview. The pursuer had taken the note home and had read it in the car on the driveway outside their home. He had been crying as he was reading it. She had gone out to see what was happening. He was upset and handed her the note saying "Look what I've got now". He had told her that a lot of what was in the note about him not doing his job properly was untrue and that he had answers to the points made against him. The pursuer took to his bed and stayed in bed all weekend. He didn't go to work on the following Monday and on Tuesday 6 June 2006 he attended Dr Logan, his general practitioner. She accompanied him to the surgery. When he emerged, having seen the doctor, it was clear that he had been crying. Her recollection was that he had a medical certificate confirming he was to be off work for four weeks because of anxiety and that she had delivered the certificate personally to Mrs McKenna at the defenders' offices which were near the doctor's surgery. She had told Mrs McKenna that the pursuer was distraught and that after the recent family history and then this incident at work he had gone to pieces. She had told Mrs McKenna about her brother-in-law's attempted suicide but on a confidential basis since, until then, it had been kept within the family. Mrs McKenna had said that she had been unaware of it.

[6] About a week later, on 12 June 2006, Mrs McKenna had phoned the house to ask when the pursuer might be back at work. Given the medical certificate, Mrs Moncrieff was surprised but had explained that he was unwell, tearful and not eating and asked if Mrs McKenna would deal with her in future as the pursuer was withdrawn and not capable of discussion. Mrs McKenna had agreed to that. Mrs McKenna had called again, about a week later, and Mrs Moncrieff had explained that there was no change. The correspondence, set out above, then ensued. Subsequent certificates of unfitness for work were issued. She confirmed that the pursuer had been prescribed Citalopram, an antidepressant, that he was still prescribed it, and that he had been taking it continually since August 2006.

[7] She felt that after the recent family traumas, the pursuer's receipt of the file note of the counselling meeting, itemising the criticisms made, had been the last straw. During the following two months there was a deterioration in his health. He was withdrawn, tearful and was not getting out of bed.

[8] She confirmed that the pursuer's solicitors had written to the first defender by letter dated 21 September 2006 and that by letter dated 28 September 2006 the first defender had responded to them. Eventually, by letter dated 9 January 2007, the pursuer had resigned from his employment with the defenders. That letter had been drafted by his solicitors. References in the letter to intimidation and harassment reflected the pursuer's view, which was that he had not been treated fairly, that he had received no support and that the letters had been making him worse. Although the correspondence from the defenders had ceased in September 2006, between then and 9 January 2007 his condition remained the same. After his resignation, his condition had improved slightly. The pursuer subsequently obtained two posts with Doosan Babcock Energy Limited. He was taken on through the intervention of Mrs Moncrieff's brother-in-law who worked for the company. After that, he had worked for HB Training Limited as a training instructor but had found that he could not cope with the job and stopped working in March 2010. He had not worked since. She felt that he was not fit to work again. He could not cope and was not well enough.

[9] In cross-examination, she confirmed that following the pursuer's receipt of the file note of the counselling interview, he never returned to work for the defenders again. She accepted that from that time he never again spoke to any of his line managers and that he had never responded to enquiries as to when he might return to work. She accepted that the purpose of the counselling interview had been to facilitate an improvement in the pursuer's work performance. She agreed that following correspondence between the defenders and the pursuer's solicitors, the first defender had written to the pursuer by letter dated 20 October 2006, confirming that "should you decide to discuss your absence (or any other matter) with us personally, then my door remains open", but that, other than to resign, the pursuer had not responded. She confirmed that a subsequent claim of constructive dismissal by the pursuer had been dismissed. She thought that the pursuer had never been aware of any concerns about his work prior to the counselling interview. She felt that it had not been the counselling interview itself which had distressed him, but rather receipt of the file note of the counselling interview. He had not been the same after that. She confirmed that her recollection of the certificate issued on 6 June 2006 might be wrong in circumstances where the pursuer's GP records indicated that the pursuer had in fact self-certified his unfitness for a two week period. She accepted that the pursuer's GP records indicated that he had told his GP that the family events were what had been causing his stress and that he had not mentioned his work, the counselling interview, or his receipt of the file note. She agreed that on the basis that the pursuer had self-certified his unfitness for work, it was reasonable for the defenders to phone after a week or so in order to enquire when he might be better. She confirmed that she had not been so concerned about the effect of the defenders' letters on the pursuer that she would open correspondence addressed to him in order to save him distress. Rather, she let him open his own letters. Under reference to a letter dated 9 August 2006, sent to the defenders by Cheviot Artus Plc, occupational health consultants, on receipt by them of a medical report by the pursuer's GP, confirming the view that "he (the pursuer) may be fit to return within the next 2-3 months", she agreed that it was legitimate for the defenders to enquire from time to time as to how he was progressing. Although in relation to the first defender's letter of 19 September 2006, suggesting an appointment to discuss only the prospects of the pursuer's return to work and nothing else, Mrs Moncrieff maintained that at that time the pursuer was too ill to cope with a meeting, she accepted, given the letter by the pursuer's solicitors dated 21 September 2006, that at around that time he had nevertheless been well enough to consult solicitors.

[10] The pursuer, who gave evidence next, was 63 years of age. He had worked for the defenders from February 2002 until January 2007. Prior to that he had never been unemployed. Until mid-2006 he had enjoyed working for the defenders. His duties had been within his capabilities and he had not found the work to be stressful. He said that his annual appraisals had never indicated any concern or criticism and that he had never been reprimanded. Although, over the period of about a year prior to mid-2006 the family events involving his mother, father, daughter and brother had been upsetting, he thought they had not impacted on his work.

[11] At about 10.30am on 25 May 2006, while at work, he had received a phone call asking him to attend at the boardroom. He said that Terry McKenna and Mrs McKenna had been there and, without forewarning, set out a list of complaints about him. The list had been quite substantial. He had responded to only one of the complaints. The meeting had lasted about 30 minutes. On the following Friday, Mrs McKenna handed him a document, of some 6-7 pages, saying: "That's your counselling report". He took it home and read it there. He found it upsetting and became distraught. He had never had criticism like that before. Nothing similar had ever previously been said. He broke down. Over the weekend he took to bed. He couldn't believe what had happened. He couldn't "handle it". He didn't go to work on the following Monday. At his wife's suggestion, an appointment was made with his GP at which he attended on Tuesday. He had previously broken down at the news concerning his daughter and brother but his state of mind was now worse. He had felt able to confide in Dr Logan, his GP, although he couldn't explain himself and had found it difficult to talk. His said that his wife had explained the position to his GP. He said he was given a certificate to allow him to take time off work which his wife then took the defenders' office. He couldn't remember if he had mentioned difficulties at work to Dr Logan. He accepted that his GP medical records regarding the appointment on 6 June 2006 indicated that only family concerns had been mentioned. He said that he began taking Citalopram, an anti-depressant, in August 2006 and had taken it ever since. His dose had been increased from 20mgs to 40mgs. Certificates of continuing unfitness for work were issued from June to September 2006.

[12] He confirmed his reaction and responses to the correspondence which ensued, as noted above. A particular issue arose in the context of the first defender's letter dated 16 August 2006 as set out under the heading "Gas Safety Documentation". One of the criticisms made at the counselling interview had been that the pursuer had missed a gas service. In fact he had been on leave at the relevant time and the service should have been carried out by a colleague. However, he felt that the criticism had been unfair in circumstances where, he said, the defenders had falsified documentation in relation to 34 missed gas services. His allegation, that documentation had been completed confirming gas services which had never taken place, was included by him in the eight page response annexed to his letter to the defenders dated 31 July 2006. The defenders' response to that was set out in the letter of 16 August 2006 and characterised the pursuer's assertion as "an extremely serious allegation" which demanded an early investigation by an independent auditor. Despite the first defender's request for further clarification of the detail of his allegation, the pursuer had done nothing more about it as he did not wish to prejudice the position of the contractors involved.

[13] He confirmed that his letter of resignation had been composed jointly by him and his solicitors and that he had in fact felt intimated and harassed by the defenders' conduct. His view was that if he had never received the defenders' letters, his condition would not have become worse. Since his resignation, he had worked for two other employers: (1) Doosan Babcock Energy Limited: May-September 2007 and February 2008 - September 2009, arranged by Harry Cowan, his brother-in-law, who was aware of the pursuer's financial difficulties. No interview had been required. As the pursuer put it: "I can't handle interviews"; and (2) HB Training Limited: 24 November 2009 - 26 March 2010, a post obtained through the intervention of a friend, but from which he eventually resigned.

[14] In cross-examination, the pursuer confirmed that on receipt of the file note of the counselling interview, he had taken ill. While he had been upset by the counselling interview, he was also upset when he read the file note. Although there had been family tragedy in the background, it was the file note which had "thrown (him) over". He had become ill after reading it and since then had been anxious and depressed. He confirmed that he had been taking Citalopram, the anti-depressant, from August 2006 to date. He accepted that he had agreed with some of the accusations made at the counselling interview and that he had disagreed with the others. He maintained that the content of the counselling interview had been a bolt from the blue and that, with the exception of the possibility of a course in letter writing, which he had suggested, there had been no prior adverse comments by management on his performance. If there had been, he would have addressed them and improved his performance. Under reference to his annual staff appraisal interview record form, from early 2006, he accepted that some of the issues noted as having "room for improvement" (letter writing, estate management and snagging) were issues which had featured in his subsequent counselling interview in June. He denied, however, that Terry McKenna had regularly pointed out performance issues to the pursuer and had asked for improvement. He maintained that any such assertion on Mr McKenna's part would be a lie.

[15] In relation to the file note of the counselling meeting, on the issue of the missed gas service, the pursuer denied that, at the time, he had been given an opportunity to respond. He didn't recall responding to any of the accusations made that day. He asserted that he had not been given an opportunity to respond at the counselling interview and that the response noted as having been made by him "that the late service had occurred while he was on leave and that he felt that it was unfair to accused him of not following it up" had been taken from his subsequent written response. He commented that another response noted to have been made by him (that "he had been more involved in pursuing the heating engineers and had recently written several letters") was false. He conceded that he had in fact made the responses noted as having been made by him in relation to "chasing Laings for certificates" and in relation to snagging. He did not recall making the response noted as having been made by him in relation to "Paperwork". Under the heading "Workload" he did recall making the response ascribed to him in the first paragraph, but maintained that the response noted in the second paragraph as having been made by him (that he had initially offered help to a particular tenant before Terry had advised him not to) was false. He had not been given an opportunity to respond and the response noted had been taken from his subsequent written response. Under the heading "Taking responsibility", despite his noted response, the pursuer did not recall being afforded any opportunity to comment. He maintained that the file note contained lies and was fabricated. He accepted that the defenders' disciplinary procedure included the process of the counselling interview as a means to avoid formal procedure. He accepted that the procedure made no provision for an appeal but felt that he was "being accused of something and had nowhere to go". He maintained that he had no problem at all about being told that something he was doing was not right and not up to standard. His position, however, was that some of the criticisms made of him were false.

[16] In relation to the entry in the pursuer's GP records concerning the consultation on 6 June 2006, he conceded that, although he was sure he would have told his GP about the counselling interview, he had to accept that, in circumstances where there was no reference made to it in the notes, he must not have mentioned it. Although the notes indicated that he self-certified his unfitness that day, he maintained that he was sure his doctor had written him a "sick line". He agreed with the entry in the GP records of 13 June 2006 to the effect that, at that time, he was gaining some benefit from being off work and was able to manage better. He said that from the first visit to his GP until early August, there had been no change in his condition. Under reference to the entry in his GP records dated 11 September 2006, he confirmed that, at that time, his problems at work had been in the hands of his solicitors and that he had gone to his solicitors before that. He confirmed subsequent entries: viz.:

9 October 2006 - "Ongoing saga re his work ... . Other than this stress, he feels he is coping well";

5 December 2006 - "Feels he is now coping, situation much better";

29 January 2007 - "Talking of applying for other jobs";

12 March 2007 - "Feels generally better";

11 April 2007 - "Feels well".

He agreed that these entries accurately recorded the pattern of his illness. In relation to the prescription of anti-depressants, he was shown an entry in the GP records dated 11 April 2007: "Now off SSRI". He thought he may have remained off Citalopram for about a month, but certainly nothing like a year. He denied that during most of the period of his employment with Doosan Babcock Limited, and in fact for a period of over two years, he had not been taking anti-depressants. When shown his prescription records, comprising part of the GP records, he confirmed that in fact he had not been prescribed anti-depressants between 29 January 2007 and 19 June 2009. He conceded that his prescription of Citalopram of new, in 2009, had coincided with his redundancy from Doosan Babcock Limited.

[17] He accepted that following the counselling interview he had chosen to engage with the defenders and had invited them to respond. He accepted that he would not have done so if he had thought it might affect his health. Under reference to the letter by the first defender, dated 19 September 2006, inviting a meeting, not to discuss work performance but only the prospects of his return to work, the pursuer maintained that he had not been fit enough to contemplate it, even in relation only to the limited subject of his return to work. Under reference to the entry in the GP records dated 11 September 2006, only days prior to the first defender's letter, he accepted that he had been fit enough to visit his solicitors and to discuss fully with them all the relevant issues relating to his employment. He confirmed that his employment with Doosan Babcock Energy Limited had ended through redundancy and not because of ill-health. He accepted that he had never attended at his GP while working for HB Training Limited. He had undergone an interview in order to obtain the job with HB Training Limited. I noted him as saying that he would currently be able to undergo an interview. A short time later, however, he maintained that he would be unable currently to undergo an interview.

[18] In re-examination, he maintained that he did consider comments made in the annual appraisal, prior to the counselling interview, to be criticisms. Under more pointed questioning, he thought he would not characterise the comments as criticisms. On the basis that the author of the counselling interview file note could not have known the content of the pursuer's subsequent written response, sent by letter about two months later, he accepted, again under pointed questioning, that although he might not recall having made all the responses noted in the file note, it was more likely than not that he had in fact made them.

[19] Mr Peter Davies, employment consultant, was 63 years of age. He spoke to his report, dated 22 August 2012, which set out his own curriculum vitae and the pursuer's background and employment history. He had interviewed the pursuer on 23 July 2012. Having assessed him, Mr Davies' conclusion was that the pursuer was not employable. His presentation in July 2012, when he appeared distressed and tearful, was such that if repeated at a job interview, no-one would employ him. He reported that the pursuer had told him that, but for the events with the defenders, he would have worked with them to age 65 years. He had not worked since March 2010.

[20] In cross-examination, Mr Davies was unable to say whether, but for the correspondence between the pursuer and the defenders, the pursuer's condition might have been the same, but he accepted that if the pursuer's self-image had been undermined by a challenge to his performance, then that could have had an effect. He agreed that there were no material differences between his conclusions regarding the pursuer and those of Mr Gordon Cameron, the employment consultant instructed on behalf of the defenders. He agreed that if the pursuer was fit to work as a joiner, he would be expected to find employment within 3 to 6 months.

[21] Mr Harry Cowan was aged 62 years. He had known the pursuer for 35 years. He was married to Mrs Moncrieff's sister. He thought that in the period 2002-06, the pursuer had not appeared to be depressed. He thought that in early 2007 the pursuer was "down in the dumps" and struggling financially following his resignation from the defenders. Mr Cowan had worked with Doosan Babcock Energy Limited for 14 years and had spoken to his supervisor about the pursuer in order to find him a job. The job required only a basic level of responsibility compared to the pursuer's role with the defenders and involved labouring at two power station shutdowns on fixed period projects from May to September 2007 and from February 2008 to 30 October 2009. During these periods, the pursuer was "not himself" and had appeared stressed. Mr Cowan had looked after him at work, in that regard. His view was that the pursuer remained now as he had been in 2007. His assessment of the pursuer was that he was good at what he did, took pride in it and liked to get things right. In cross-examination, he accepted that in terms of their records, Doosan Babcock Limited had employed the pursuer on a permanent basis until he was made redundant.

[22] Dr Ian Matson, consultant psychiatrist, was aged 60 years. He confirmed his extensive professional qualifications and experience. He regularly produced medico-legal reports, and gave evidence, on behalf of both pursuers and defenders in equal measure. In all, he spoke to seven reports prepared by him in relation to the pursuer. He had examined the pursuer on five occasions.

[23] At the time of his first report, dated 1 October 2008, an employment tribunal had found in the pursuer's favour in relation to his claim for constructive dismissal. Dr Matson had read the tribunal's reasons as part of the background information provided to him. He thought it likely that the pursuer had been becoming to some degree depressed before the "difficulties at work" but that what was likely to have been a milder self-limiting episode of depression had instead become persistent. By the time of his next report, dated 16 July 2009, the Employment Appeal Tribunal had reversed the earlier decision. Notwithstanding that, Dr Matson had noted some improvement in the pursuer's condition. In his next report, dated 20 June 2011, some two years later, Dr Matson expressed the opinion that if matters at work had been dealt with more sympathetically, it would have been likely that the pursuer could have returned to work. Dr Matson's diagnosis was that the pursuer was suffering from a recognised psychiatric illness. He was chronically depressed. In making his assessment, he had accepted the pursuer's account as to why he was depressed but had also taken into account his pre-occupation with the relevant events, the timing of them and his clinical presentation. His view was that the pursuer's depression had become persistent as a result of what had happened at work. In his next report, dated 14 February 2012, Dr Matson noted an improvement which he ascribed to the facts that the pursuer was now taking Citalopram again, that he had been granted legal aid to fund his case and, to the extent that he was no longer considering looking for work, that some pressure had been removed from him. Dr Matson's next report was dated 3 February 2013. In it he expressed the views (1) that the first defender's actions had exacerbated the pursuer's condition and had contributed to its severity and persistence, (2) that if she hadn't written as she did, the situation would have been retrievable and the pursuer would have gone back to work, although it would have been difficult for him to accept the criticisms made, and (3) if matters had been dealt with sensitively, he could have returned to work in about July 2006. He considered that the correspondence comprising the letters dated 3, 4, 16 and 29 August and 19 September would have been found to be upsetting by anyone, that as a result of the occupational health documentation the defenders knew that the pursuer was depressed, and that the effect of the letters on the pursuer would have been to worsen and prolong his depression with a consequent worse prognosis for recovery. His assessment of the pursuer was that, in matters concerning his work, he considered himself to be conscientious and irreproachable.

[24] In his report dated 8 September 2013, following his fifth interview with the pursuer, Dr Matson noted him still to be tearful. In that report, he also commented on aspects of a report by Dr Alan Carson, the consultant psychiatrist instructed on behalf of the defenders, dated November 2011. He disagreed with Dr Carson to the extent that it might be suggested that the pursuer's condition had been worsened and prolonged by factors other than stress at work and the ensuing litigation or that there might be any degree of falsification or malingering. Dr Matson, who was present in court at the relevant time, commented that having seen the pursuer give evidence on his own behalf, the pursuer had presented as "being in better shape than I had expected". He also commented that even if the defenders' actings were to be judged as having been reasonable, they could have still set the pursuer back by constituting a trigger for exacerbation of his condition. In his report dated 8 September 2013, Dr Mattson also commented on a supplementary, undated, report by Dr Carson. Although he thought the differences between Dr Carson and himself were only matters of emphasis, he remained of the view that if there had been no problems at work, the pursuer's depression would have been milder than in fact had proved to be the case. In a further report dated 15 September 2013, Dr Matson commented on a further report by Dr Carson, dated 11 July 2013. Despite misgivings stated by Dr Carson on the matter, Dr Matson was strongly of the view that there had been no falsification in relation to the pursuer's claim.

[25] In cross-examination, Dr Matson accepted that distressing family events in isolation, without other problems, could lead to clinical depression, that it was possible to be suffering from depression but still continue to work, that depression could alter the perception of events and that a given stimulus could provoke over-reaction in someone suffering from depression compared to a non-sufferer. He accepted that it was possible that, in the period prior to the counselling interview, the pursuer had symptoms of depression not yet diagnosed and that the criticisms made of him at the interview had exacerbated an existing depressive condition. He accepted that it was plausible that the pursuer was depressed at that time and that an over-reaction to the counselling interview was quite likely. He agreed that his impression was that the pursuer had been unwell since his receipt of the counselling interview file note. He accepted that if the general practitioner records indicated no worsening of the pursuer's condition in 2006, they were probably accurate, but considered that subsequent events had also contributed to consolidate the pursuer's depression in the sense that the longer it lasted, the poorer became the prognosis for recovery.

[26] On the basis of his assessment that if matters had been treated sensitively the pursuer would have returned to work by July 2006 (per his report, dated 3 February 2013), he accepted that for that to be so something insensitive, whether something the defenders had done or something they did not do, must have happened prior to then. He agreed that in the light of the general practitioner's certificate of unfitness, issued on 13 June 2006, for a two-week period, it was reasonable to infer that at that time there had been an expectation that the pursuer would be shortly returning to work.

[27] He accepted that the pursuer had been preoccupied and obsessed with work related events to the extent that he was thinking about them every day. He agreed that on receipt of the counselling interview file note, the die had been cast in the sense that the pursuer was so badly affected by it that he was inevitably going to be depressed following that. He considered that something could have been done to mitigate the position. He agreed that the proposed staged return was a helpful suggestion and that refusal by the pursuer to take up the suggestion would not have assisted. He accepted that the pursuer had written to the defenders in August refuting the criticisms made and inviting a reply. In that context, he was unable to assess how much of an accommodation would have been necessary to assuage the pursuer's feelings. His view was that by the time the pursuer had received the criticisms in writing, it would thereafter have been difficult to redress the effect of that. He agreed that the initial refusal of the pursuer's application for legal aid, in the context of the pursuer having described himself as thinking about the appeal "all the time", was likely to have made his condition worse. He agreed that the appeal had been a major pre-occupation for the pursuer and that the stress surrounding it had made his depression persistent. He considered that, prior to that, the pursuer had been depressed throughout 2006 following his receipt of the file note. Dr Matson thought that the pursuer had been a good deal better in May 2007 in that he was working and no longer taking anti-depressants. However his condition had been worsened by the loss of the appeal before the Employment Appeal Tribunal and the refusal of his application for legal aid. Dr Matson considered that, but for these two events, he would have continued to be fit to work in the capacity in which he was employed in 2007.

[28] In re-examination, Dr Matson adhered to his view that the series of correspondence between the pursuer and the defenders, cumulatively, had prolonged the pursuer's illness. In response to a question posed by me, he considered that the nature of the pursuer's personality, including his strong work ethic, the pride he took in his work, the fact that he considered himself to be irreproachable and the perception that the criticisms made were unjust, was such that, even without the impact of depression, he would have been more susceptible to the adverse effect of such criticisms than the average person.

The defenders' case

[29] Dr Alan Carson, consultant neuro-psychiatrist, spoke to his curriculum vitae, qualifications and his experience. Although he had a specific interest in neuro-psychiatry, that was only one of specialisms. His primary interest was in functional symptomatology. He was also a qualified general psychiatrist and had previously worked as a consultant in adult psychiatry at the Royal Edinburgh Hospital. He had been, and was, the holder of various positions in several of the professional organisations of his field and had published some 40 papers of original research. He routinely prepared expert reports and gave evidence on behalf of both pursuers and defenders in roughly equal proportion. He spoke to his principal report dated March 2011 and to three supplementary reports. He had interviewed the pursuer on 1 November 2011 and on one other occasion.

[30] He reported that when speaking of the counselling interview on 25 May 2006, the pursuer had described himself as being reprimanded. His impression was that the pursuer had viewed the interview as a confrontational meeting. He had spoken about it in acrimonious terms. His language was that of dispute. In speaking about it, the pursuer had become almost white with rage. His impression was that the pursuer had felt mistreated and accused, being backed into a corner and having to come out fighting. He wanted his name to be cleared. Dr Carson's impression was that what the pursuer had wanted was retrospective action in the form of a retraction, rather than a future solution or reconciliation. The pursuer seemed to view everything through the prism of his perception of what had happened at work. He had described being asked by the first defender to go for a medical examination, "despite her being told that I was unwell". Dr Carson's view was that the pursuer thought that the first defender was acting malevolently towards him and that that the criticisms made were largely falsified.

[31] The pursuer had told him that, on receipt of the counselling interview file note, he had been "devastated". Dr Carson thought that, subsequently, the pursuer had been consumed by thoughts about it. The pursuer had described the content of the occupational health referral form as being very annoying and very antagonistic. He was particularly angry about the comments relating to his daughter and had read them as a vicious attack on him. In talking about it, he had become incensed and had clenched his knuckles in rage. In contrast, Dr Carson, personally, considered the content to be innocuous and a simple transfer of information. He considered the strength of the pursuer's reaction to it to be in excess of anything to be expected. The pursuer appeared to think that the criticism was being used as part of an overt agenda to attempt to force him out of his job. His presentation had been tearful but also one which demonstrated real anger.

[32] In relation to the development of the pursuer's condition, the scenario which Dr Carson considered most likely was that the pursuer had become depressed during 2005 for reasons unrelated to his work, but, because of his symptomatology, began to function more poorly at work and required a degree of performance management, but was unable to tolerate it and instead perceived his employers' acts as having malevolent intent which included the falsification of information. That had compounded his depressed mood and had led to a downward spiral of obsession with litigation. He found support for that analysis in the pursuer's response to the counselling interview file note and the occupational health referral form which, assessed as an over-reaction to neutral stimuli, was characteristic of someone who was already suffering from depression. It was not uncommon for the symptomatology of depression to pass unnoticed by others prior to diagnosis. Under reference to his first supplementary report, undated, he agreed that the GP records disclosed nothing that indicated a deterioration in the pursuer's condition during 2006 and 2007. While he agreed that the GP records did not disclose any reference to the pursuer's condition being prolonged by any particular events, in particular in relation to the period prior to the end of July 2006, he considered that the pursuer's illness had lasted longer than anyone would have predicted. His view was that the cause of the continuing mood disturbance was the original review at the counselling interview and the pursuer's sense that it was not fair and that he needed to clear his name. It was that criticism and his ongoing ruminations about it which had prevented a speedy recovery.

[33] Under reference to his next supplementary report, dated 26 October 2012, and specifically to the letters dated 4, 10, 14, 19 and 31 July 2006 and the occupational health referral form dated 4 July 2006, Dr Carson considered that on the basis of the content of that documentation, it was not possible to identify anything in the defenders' conduct that could have delayed a recovery which otherwise might have been expected to occur in July 2006. There was no clinical material to support such a view. The GP records disclosed that the first prescription of an anti-depressant was on 19 July. On the basis that the pursuer's symptoms were characteristic of depressive illness and were untreated until then, Dr Carson disagreed with Dr Matson's view that the pursuer's condition could have been resolved by July 2006.

[34] He maintained his opinion that the pursuer's response to correspondence which, viewed medically, appeared innocuous, had been abnormal. The available explanations were either that the pursuer had been correct in viewing it as falsified and malicious or that his response had been shaped by psychopathology in the sense that, because of his disturbed mental state, he was reading into it something which was not there. In other words, his illness had been distorting his view of ordinary communications. Although the pursuer had invited the defenders to reply to his response to the counselling interview file note, Dr Carson's view was that only a complete retraction of the comments made would have alleviated the pursuer's mood.

[35] In relation to his final supplementary report, dated 13 July 2013, whereas until then Dr Carson had largely discounted any possibility of falsification, the information then made available to him in the form of the pursuer's employment records with Doosan Babcock Limited, revealed inconsistencies between its content and what the pursuer had told him at interview about his employment since resigning from the defenders' organisation. Under reference to a letter from the Scottish Legal Aid Board, dated 22 March 2010, confirming that the pursuer's application for legal aid had been refused, Dr Carson thought that, given the pursuer's obsession with the legal process arising from his employment with the defenders, receipt of that letter would have had a devastating effect on him. He was also of the view that the reversal of the employment tribunal decision by the Employment Appeal Tribunal, in 2009 would have had a similarly devastating effect on him. Dr Carson was of the view that whatever the cause of the pursuer's current unfitness for work, given his employment for about two years since leaving the defenders, it could not be said that there was any real link between the correspondence sent to him by the defenders and the deterioration in his condition in 2009-10.

[36] In cross-examination, Dr Carson agreed that as regards diagnosis of the pursuer's condition, there was no material difference between him and Dr Matson. The pursuer had suffered a recognised psychiatric illness. As to the circumstances of the counselling interview and the correspondence, the question was whether they were the cause or effect of the pursuer's illness, that is, whether he had responded in a particular way to something done to him or whether an existing altered mental state had affected his view of the world.

[37] Having regard to the Fitness for Work Statement, dated 4 August 2006, (which referred to a diagnosis of depression, unfitness for work, the unlikelihood of the pursuer becoming fit for duties for the succeeding 2 to 3 months, the need for a phased return and the delay of work performance discussions for two months after that) and to the letter dated 9 August 2006 (which referred to depression and the possibility, in the event of a good response to treatment, of becoming fit in 2 to 3 months), Dr Carson accepted that, by that time, the defenders were aware of his condition. However, even against that background, he did not consider the content of the letter of 19 September 2006 (which referred to concern for the business and suggested an appointment on 28 September 2006 to discuss when the pursuer might be fit to return to work) to be such as would exacerbate depression. Notwithstanding that there had been a request not to contact the pursuer directly, he considered, from a psychiatric perspective, that the content of the letter was not a major stressor even for someone who was mentally ill. He did not regard the letter as something which would have had an adverse impact on recovery.

[38] In relation to his final supplementary report, dated 11 July 2013, Dr Carson stated that his new appreciation of the pursuer's employment history subsequent to that with the defenders, gleaned from the Doosan Babcock Limited documentation, painted a very different picture to that presented by the pursuer at interview. The impression given by the pursuer had been that he had not been fit for work and that any employment, after that with the defenders, had been for a few brief periods only. Instead, the documentation suggested sustained employment and that had caused him to reconsider his thoughts about the pursuer's reliability. Although he could accept that it was possible that there had been minor misunderstandings between himself and the pursuer, he did not believe that his prior overall impression had been the result of confusion. The new information was incompatible with the content of his earlier discussion with the pursuer. He disagreed with Dr Matson that a presentation of tearfulness and emotional liability could not be feigned and was aware of research findings which supported his contrary view.

[39] Mrs Colette McKenna was 45 years of age and employed by the second defenders as their technical services manager. She had worked for them since 2001 and was responsible for new build development and the maintenance of the buildings estate, which comprised about 1000 homes. The second defenders' premises were an open plan office, accommodating several departments, and allowing considerable interaction among employees.

[40] The second defenders had a staff appraisal system which was separate from their disciplinary procedure. Staff appraisals, nominally on an annual basis, were not intended to be critical but rather were intended as an opportunity at which, in free dialogue between employee and line management, anything could be discussed and improvement and development encouraged. As part of that process, the pursuer had participated in a staff appraisal interview on 24 April 2006. Thereafter, a copy of the record of the relevant completed form had been sent to him. It had been recorded that there was room for improvement in relation to letter writing, estate management and snagging. Terry McKenna had wanted to raise these issues as part of the appraisal. There had been long-standing concerns in relation to these aspects of the pursuer's performance. They had been raised informally with him and mentioned generally in the office as required, as for example in relation to the need for him to make decisions himself rather than to ask others to do it. Both Mrs McKenna and Terry McKenna had raised such matters with the pursuer. He had been told on previous occasions that his time management skills had to be improved. The pursuer had accepted such comments, but no change had been apparent.

[41] The counselling interview, held on 25 May 2006, was part of a disciplinary procedure and was intended as an informal, soft but direct approach, appropriate where managers perceived a need to emphasise issues raised previously or where serious matters required to be addressed. The interview was not noted as part of an employee's disciplinary records. The aim was to achieve improvement through guidance and support. The file notes recorded that at the end of the interview "Colette stated that they would need to see a marked and consistent improvement in George's performance across all areas and would review matters with him at the end of June." In the event of no improvement, a verbal warning would have followed, followed in turn, if necessary, by a written warning and thereafter a final written warning. The purpose of the counselling interview, however, had been to avoid that. The counselling interview file note reflected that, throughout the interview, the pursuer's responses had been noted. Mrs McKenna disagreed with the suggestion that he had been given no opportunity to respond. Rather, the process was a discussion. Mrs McKenna, herself, had noted his responses. Under each subject heading discussed, the pursuer had been given the opportunity to respond and had done so.

[42] On the Monday following the Friday (2 June 2006), when Mrs McKenna had given the pursuer the counselling interview file note, there had been a telephone message that the pursuer would not be coming into work. On Tuesday, the following day, Mrs Moncrieff had met Mrs McKenna and had explained to her that the pursuer was unwell because of personal stress in his life, some of which Mrs McKenna had been aware of, but that his illness had nothing to do with the counselling interview, although he intended to refute the criticisms which had been made at it. Mrs McKenna stated that Mrs Moncrieff had not handed in a medical certificate at that time. At that meeting, Mrs Moncrieff had not said how long the pursuer was likely to be off work. Prior to receipt of the medical certificate, dated 13 June 2006, and signed by his GP, the second defenders had no information about the pursuer from a medical source. Under reference to the letter dated 10 July 2006, sent by Mrs Moncrieff to the first defender, Mrs McKenna confirmed that she had phoned the pursuer's home on Monday 5 June 2006 to find out why they pursuer was not coming into work as, at that time, she had no explanation. She confirmed that she phoned again on 12 June 2006 (prior to receipt of the medical certificate dated 13 June 2006) for an update. She confirmed that the pursuer had never phoned her, had not responded to her calls and that, in fact, they had never spoken again. In relation to the letter dated 31 July 2006, sent by the pursuer to Mrs McKenna, she confirmed that both she and Terry McKenna had been present at the counselling interview because both had issues to discuss with the pursuer. There was no appeal, as such, from the counselling interview as it did not form part of the formal disciplinary process.

[43] On receipt of the pursuer's allegations regarding gas servicing, set out in his response to the counselling interview file note enclosed with his letter dated 31 July 2006, the defenders had been sure that the allegations were unfounded. A full audit of the gas servicing procedures by an independent assessor had then been instructed which disclosed that nothing wrong had been done, that nothing had been falsified and that the relevant procedures were in order.

[44] Mrs McKenna recognised that, following the counselling interview, the pursuer had asked for investigations to be made and that the first defender had indicated that there could be an investigation, but only once he had been back at work for a while and was able to participate in it. In relation to the criticisms made under the headings set out in the counselling interview file note, since the failings to which they related were ones recognised by either Mrs McKenna herself or by Terry McKenna, she could not envisage what difference an investigation would have made to the need for improvement on the part of the defender. The criticisms which she had raised were based on evidence she had considered or on what she herself had seen.

[45] In cross-examination, she maintained that concern about the pursuer's work performance had been raised informally with him prior to 25 May 2006, both by her and by Terry McKenna. Terry McKenna had been involved in that to a greater extent than her, but he had spoken to her about it regularly over the previous two year period whenever issues arose. She explained that such exchanges with the pursuer would not be recorded in the pursuer's personnel records because they were informal. She accepted that in an earlier appraisal the pursuer had been complimented. Taking into account that the ethos behind the appraisal system was one of support and encouragement, and that the language employed reflected that, she maintained her view that the matters raised in the pursuer's appraisal prior to the counselling interview on 25 May 2006, assessed together, were properly described as "serious concerns". In response to the suggestion that the manner in which the concerns were described at the counselling interview was of a different character to that employed previously, she explained that the nature of the counselling interview was of a different character to that of an annual staff appraisal. She refuted the suggestion that the pursuer's concerns expressed at the counselling interview had been ignored and maintained that while they had been noted and taken into account, there had remained a need, after previous informal approaches, for improvement. In relation to her discussions with Mrs Moncrieff on 6 June 2006, she confirmed that Mrs Moncrieff had told her that it was not the counselling interview that had disturbed the pursuer and that he was not unwell because of his work. Rather, it was that following a series of family upsets which had caused him distress, his receipt of the counselling interview file note had been too much for him. Mrs Moncrieff had said that the file note had upset him because he was already upset.

Submissions
Submissions for the pursuer

[46] At the outset it was made clear that it was no part of the pursuer's case that the second defenders had not been entitled to conduct the counselling interview on 25 May 2006 or that the counselling interview or the content of the file note relating to it had been the sole cause of the pursuer's condition. Neither was this a case of workplace stress brought about by workload or working conditions. Rather, the pursuer's case was focussed on conduct towards the pursuer when he had not been at work. The critical factor was that while the pursuer had been absent from work the defenders had been aware of the nature of his condition. Since the pursuer's case was predicated on the fact that the defenders knew he was suffering from depression at the relevant time, the aetiology of his condition was of no significant import.

[47] The broad principle to be applied was that encapsulated in the dictum of Swanwick J in Stokes v Guest, Keen & Nettlefold (Bolts & Nuts) Limited (1968) 1 WLR 1776, 1783, and quoted by Lord Walker in Barber v Somerset County Council (2004) 1 WLR 1089 at 1110:

"the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know;".

Each case had to be decided on its own facts. The duty owed by an employer is to the particular employee concerned, taking into account any known particular susceptibility that the particular employee might have. The question was whether the course of conduct under scrutiny had made a material contribution to a deterioration of the pursuer's condition. I was also referred to the decisions of Fraser v State Hospitals Board for Scotland 2001 SLT 1051, at para [105]; Cross v Highland & Islands Enterprise 2001 SLT 1060, 1061B-J, 1077G-1078B, 1078F-H and 1091A-F; and Simmons v British Steel Plc 2004 SC HL 94, paras [14]-[26].

[48] In relation to the expert psychiatric evidence, I was urged to prefer that of Dr Matson. He had produced seven reports in all, involving five interviews with the pursuer over the period 2008-11. Dr Carson had produced four reports and had seen the pursuer twice. Dr Matson had first interviewed the pursuer at an earlier stage than Dr Carson. Both were of the view that the pursuer was suffering from a recognised psychiatric illness, namely depression, which had been long-lasting. Both were of the view, if with minor differences of emphasis, that the receipt of the counselling interview file note could have had a detrimental effect on someone such as the pursuer who was depressed at that time. The areas of significant difference between them were in effect only two in number. First, in relation to whether the correspondence complained of had a detrimental effect on the pursuer's condition, Dr Matson was in no doubt that it had, whereas Dr Carson's view was that while there had been such an effect, nevertheless, even against a recognition that depression can have the effect of distorting perception, the content of the correspondence had not been objectionable. Second, in relation to the question of when, but for that detrimental effect, the pursuer would have otherwise returned to work, Dr Matson's view was that if he had been dealt with sympathetically the depressive episode would probably have been milder and self-limiting and the prognosis better. Dr Carson had not stated when, in such circumstances, the pursuer might have returned to work although he thought the suggestion of a return by the end of July 2006 was unrealistic.

[49] It was accepted that the pursuer, in giving evidence, had not always been an accurate historian. It was submitted that he had, at times, been confused. In the circumstances of his ongoing depression, it would be wrong to conclude that such inaccuracies were indicative of a lack of probity. The pursuer's account had been generally supported by Mrs Moncrieff and by Harry Cowan.

[50] As to the correspondence, the letter of 4 July 2006, although apparently innocent when viewed in isolation, set the tone for what was to come; that of 3 August 2006 was in fact a reprimand; and that of 4 August 2006 was churlish given that no cost to the defenders had been incurred. Whereas these letters set the background, the watershed was established by receipt by the second defenders of the Fitness for Work Statement, dated 4 August 2006, and the subsequent letter from Cheviot Artus Plc, dated 9 August 2006. From that point, the defenders had knowledge of the pursuer's condition. The effect of the subsequent correspondence, viewed cumulatively, had to be assessed in that light.

[51] In that regard, the particular letters on which the pursuer relied were those of 16 and 29 August and that of 19 September 2006. The letter of 16 August 2006 was not what a reasonable employer exercising reasonable care would have written to a man suffering from a known depressive illness. It was tendentious, argumentative, paid no regard to the medical advice tendered and paid no regard to the serious nature of the illness. In context, the letter of 19 August 2006 was to be considered as a plea for the pursuer to be left alone, in response to which a reasonable employer would have ceased further contact until the pursuer was fit to return to work. The letter of 29 August 2006, the second paragraph of which appeared to be an attempt to persuade the pursuer to disregard medical advice, was a letter no reasonable employer would have written. Given the terms of the Fitness for Work Statement, dated 4 August 2006 and the letter of 9 August 2006, the terms of the letter of 19 September 2006 were extraordinary, wholly inappropriate and unreasonable, and constituted a breach of the duty to take reasonable care. In a letter dated 10 November 2006, Dr Logan had written to the pursuer's solicitors confirming that, in his view, any meeting with his employers prior to a return to work would be likely to exacerbate the pursuer's condition.

[52] In response to the defenders' submissions, it was said that Lord Rodger's dictum in Barber (supra) should be viewed in the context of that case, which was a workplace stress case in which what had been required was an assessment of how, if at all, the workplace regime could have been altered. In any event, in the circumstances of the present case, a more sympathetic approach than was adopted would have been not to write to the pursuer at all, but certainly not in the terms in fact used, until such time as he was fit again for work. As a result of the defenders' conduct the pursuer's condition had become more chronic. The pursuer's case was that the defenders' conduct had exacerbated his condition by prolonging it. In considering the letter of 19 September 2006, it was important to bear in mind the timing of events. By the time it was written, the defenders had already been advised, as at 9 August 2006, that it was thought that if the pursuer responded well to treatment he might be fit to return to work within 2 to 3 months.

Submissions for the defenders

[53] Senior counsel for the defenders provided me with written submissions. I do not repeat these submissions in detail here, but the arguments set out in them are reflected in what follows. I have taken these written submissions, together with those made at the bar, fully into account.

[54] It was accepted that the applicable law was as set out for the pursuer but, in addition it was necessary to take into account what steps had been open to the employer in the particular circumstances of the case. As Lord Rodger had put it in Barber (supra) at para [18]:

"... even where a court finds that such injury was foreseeable, it must go on to consider what steps the employer could be [sic] reasonably be expected to take once he was aware of that risk and whether they would have been effective."

On that front, the evidence on which the pursuer relied went no further than that if he had been dealt with more sympathetically, his condition would not have developed as it did. That was an insufficient basis on which to find the defenders liable. It was not disputed that the receipt by the pursuer of the counselling interview file note had precipitated a decline in his condition. The crux of the pursuer's case involved reliance on the letters of 16 and 29 August and 19 September 2006. The evidence from Dr Matson that the pursuer's condition became more chronic and that he would otherwise have been fit enough to return to work by the end of July, could not therefore be reconciled with the allegations of fault. There was no evidence from any other source that the pursuer's condition had worsened as a result of the correspondence. The GP records provided no support for that contention.

[55] As to the correspondence, the letter of 16 August 2006 had been written on the basis that the pursuer's earlier letter had invited a response. In evidence, the pursuer had said that he would have been upset if the defenders had not responded. To that extent, the defenders were complying with the pursuer's wishes. In all the circumstances, the terms of the letter were reasonable. In circumstances where in Dr Carson's view, the only thing which would have alleviated the pursuer's condition would have been a complete retraction, that was not a step which it would have been reasonable to expect the defenders to take.

[56] The very point of the letter of 29 August 2006, as was clear from the first paragraph, was to bring the course of correspondence to an end. Viewed in that context, the author could not have foreseen any adverse consequences to the pursuer's health on his receipt of it.

[57] The Fitness for Work Statement, dated 4 August 2006, had recommended, in answer to the sixth question posed, a phased return back into the workplace and discussion with the pursuer about that prior to his return. The letter of 19 September 2006 had been written in accordance with that advice. By limiting the content of the proposed discussion to the prospect of the pursuer's return to work, the letter also followed the further recommendation in the Fitness for Work Statement that any interview regarding work performance should be delayed until after the pursuer's return to work. In any event, in assessing the effect of the letter on the pursuer, it had to be borne in mind that, as recorded in the GP records on 12 September 2006, the pursuer had been fit enough at about that time to attend at his solicitors in order to discuss his position at work.

[58] The pursuer's case was periled on all three letters being objectionable. The pursuer relied on the cumulative effect only. In assessing the effects of the letters, it was necessary to bear in mind the pursuer's fixation with work related events following his receipt of the counselling interview file note. That had been recognised by both Dr Matson and Dr Carson.

[59] As to loss, generally, the claim was not in relation to the cause of the pursuer's depression but merely to an alleged delay in recovery from it. The pursuer had been fit for work from 2007 until 2009. There was no evidence that his ongoing condition since then was referable to the correspondence complained of.

Discussion

The pursuer

[60] I accepted all of the witnesses as being credible and reliable with the exception that, in the case of the pursuer, some aspects of his evidence gave me cause for concern. I do not impugn his credibility and I formed the view that he was doing his utmost to assist the court, but his evidence was not always internally consistent. On some factual matters his answers followed a pattern characterised by answers which began with phrases such as "I don't know" or "I don't remember" followed quickly, when it might have been thought to be in his interests, by the use of affirmative responses of less than certainty such as "I would say so". Some of his answers conflicted directly with earlier responses. He appeared to have no difficulty, on the one hand, in reconciling his apparent unfitness to attend a meeting with the defenders to discuss his likely date of return to work, with, on the other, his ability, only a few days previously, to consult his solicitors on the whole spectrum of his difficulties at work. In three regards in particular his evidence was of note: the first being his evidence as to the lack of opportunity afforded to him to respond during the counselling interview held on 25 May 2006; the second being his evidence as to the periods of the prescription of Citalopram; and the third being his description to Dr Carson of the pattern of his employment after 2006. Since in these respects I accept the evidence against the pursuer to contrary effect, I felt it necessary to look for an explanation. On his behalf, I was urged to take into account the fact that he continues to suffer from the effects of depression. I accept that it is appropriate, in the light of the pursuer's particular circumstances, that I follow that course but in doing so, I have also had regard to the evidence, which I accept, that as a result of his condition he remains consumed by his perception of the defenders' actions and has been preoccupied and obsessed with his claims against them. Against that background, whilst I have noted these aspects of his evidence which caused me concern, I have attached less significance to them in the context of an assessment of his reliability than I might otherwise have done. I am prepared to accept that such discrepancies in his evidence were certainly not deliberate and are explicable when considering his diagnosis in the round. If anything, his evidence in these respects adds weight to the recognition by others that his own subjective perceptions of events have been informed through the prism of his illness.

The context of the claim

[61] Both psychiatrists accepted that prior to May 2006, as a result of the distressing events which had occurred within his family, the pursuer was probably suffering from undiagnosed depression. I accept Dr Matson's evidence to the effect that while it is possible for some to work while suffering from depression, its effect can alter perception and induce an overreaction to stimuli which otherwise would not produce such an effect. Both psychiatrists were in broad agreement that it was likely that the experience of the pursuer's counselling interview and, in particular, his receipt of the file note relating to it, had an adverse effect on his condition. Indeed, the evidence was eloquent of the fact that the pursuer reacted badly to the process of the counselling interview and his subsequent receipt of the file note. Dr Carson noted the pursuer as having described the counselling interview as a confrontational meeting, amounting to a reprimand, having referred to it in acrimonious terms and employing the language of dispute, becoming almost white with rage while recounting the events, and giving the impression of someone who felt mistreated, accused, backed into a corner and requiring to come out fighting in order to clear his name in circumstances where the evidence against him had been falsified. In that context, I attach weight to Dr Matson's view that, given the pursuer's personality, his strong work ethic and the pride he took in his work, and Dr Matson's assessment of him as being someone who considered himself to be "irreproachable" in that regard, he was someone who, even putting the fact of depression to one side, was likely to have been more susceptible to the adverse effect of criticism than the average person.

The effect of the correspondence on the pursuer

[62] Both psychiatrists were broadly of the view that in the period subsequent to the pursuer's receipt of the file note, his condition worsened in the sense that his depression was thereby consolidated and rendered longer-lasting. I accept that, consistent with the content of the pursuer's GP records, while it would appear that the depth of his depression was not exacerbated in the period following late May 2006, it did become more chronic with a correspondingly poorer prognosis for recovery.

[63] The strength of the pursuer's reaction to the counselling interview and the file note was reflected in his response to the letters he subsequently received from the first defender. The description in the evidence of that reaction involved language to the effect that he was appalled, annoyed, disturbed, obsessed, felt accused and put under pressure, upset, unfairly rebuked and attacked. Against the background of all of those facts and circumstances I find that the pursuer's assertion that, as a consequence of his receipt of the letters complained of, his condition was exacerbated in that it became more chronic, is proved. The question then is whether the defenders were responsible, in the sense of being at fault, for the increased chronicity of the pursuer's condition.

Was there a breach of duty?

[64] In early August 2006 the first defender's state of knowledge as to the pursuer's condition had been informed by the Fitness for Work Statement, dated 4 August 2006 and by the subsequent letter by Cheviot Artus Plc, dated 9 August 2006. As a result, she was then aware that:

(1) The pursuer was temporarily unfit for work;

(2) He had been diagnosed as suffering from depression, was receiving treatment, and was on a waiting list of some 6-8 weeks for counselling sessions;

(3) His symptoms did not appear to be work related, but the terms of the counselling interview file note had contributed to his mood;

(4) It appeared unlikely that he could fulfil his duties for the subsequent 2-3 months or so;

(5) A phased return to the workplace, to be discussed with him prior to his returning to work, was recommended;

(6) In order to aid recuperation and confidence building any discussion of work performance should be delayed for 2 months following his return to work; and

(7) His GP considered that if the pursuer responded well to medication and/or counselling, then he might be fit to return to work within 2-3 months, and was very optimistic of a full recovery.

Prior to then, the defenders had not known that the pursuer was suffering from depression. His medical certificates had indicated anxiety as the reason for his absence but the defenders had no indication of the date of his likely return to work.

[65] Against that background, given that it reflects the first defender's understanding at the time, I do not view the terms of the letter dated 4 July 2006, sent by her to the pursuer as being unreasonable. Although the reference in it to him "having declined to return Colette's calls" might have been better expressed, I view it as an intended explanation of the perceived need for the referral to an occupational health specialist rather than the antagonistic remark it was interpreted to be by the pursuer.

[66] I consider that the document entitled "Staff Referral to Occupational Health", dated 4 July 2006, should properly be assessed in a similar way. Its terms broadly reflect the first defender's state of knowledge, set out no doubt to assist the specialist, and although regrettably it contained inaccuracies relating to the pursuer's brother, which in the circumstances was unfortunate, I consider that viewed objectively from the perception of an employer with the first defender's then state of knowledge, it could not have been foreseeable that the pursuer would take such offence to its terms.

[67] The letter dated 19 July 2006, sent by the first defender to the pursuer was expressly in reply to a letter dated 14 July 2006 sent to her by him. I view the content of the letter dated 19 July 2006 as being nothing more than terms of reassurance and intended cooperation.

[68] The two letters dated 3 and 4 August 2006, concerning the continuity of medical certificates and phone usage, must also be considered in context. The pursuer's reaction, namely that he was distressed by what he considered to be an accusation and felt his employers were putting him under pressure may well have been informed by his depression as compounded by his reaction to the counselling interview file note, but at that time, if that was the case, the first defender was still unaware of the particulars of his condition. Viewed with that in mind, the letters of 3 and 4 August 2006, though no doubt disciplinary in their tone, could not be said to be objectionable.

[69] The first of the particular letters, sent to him by the first defender, on which the pursuer relies in his claim is that dated 16 August 2006. It was a response to a letter, dated 31 July 2006, sent by the pursuer to her which enclosed his detailed response to the counselling interview file note. (Although it is not material to the outcome of this action, I accept the evidence for the defenders that the counselling interview and the file note subsequently intimated to the pursuer were intended only as a mechanism to facilitate improvement in the pursuer's performance at work without invoking a formal disciplinary process. I find on the evidence of Mrs McKenna that there were legitimate concerns about the pursuer's performance at work and that they had been previously intimated to the pursuer, informally, prior to the counselling interview held on 25 May 2006. I am not persuaded by the pursuer's evidence that any such concerns were falsified. I also find that the counselling interview proceeded as recorded in the file note, in that the pursuer was allowed the opportunity to respond as he wished, and did so, and that the suggestions made in evidence that several of his noted responses had been fabricated by others are not made out.) It is reasonable to assume that by the time when the letter of 16 August 2006 had been written, the first defender had the benefit of the information concerning the pursuer set out in the Fitness for Work Statement, dated 4 August 2006 and the letter by Cheviot Artus Plc, dated 9 August 2006. Even taking that into account, however, it appears clear to me from the text of the letter of 16 August 2006 that it was a response to serious matters raised by the pursuer himself which, considered from the perspective of a responsible employer, would have required to be addressed. These included the continuing assertion that there had been lying on the part of staff against the pursuer's interests, a refusal on the pursuer's part to accept the concerns held by his managers and an allegation of fraudulent conduct. The terms of the letter of 16 August 2006 included explicit recognition of the undesirability of protracted correspondence. They also included recognition of the medical advice set out for the defenders in the Fitness for Work Statement to the effect that the best course was to postpone discussions of performance related issues until about 2 months after the pursuer returned to work. The stated alternative, of disregarding that recommendation, should in my view be interpreted as being indicative of a contemplation of the possibility that the pursuer might nevertheless have wished at that time to advance matters relating to his performance at work. To that extent the letter should be viewed as being accommodating of his possible requirements. In that context, the second option was, in my analysis, one offered by a cooperative employer prepared to assist the pursuer if he chose to explore that particular avenue, but recognising the need, if that were to happen, for an explicit waiver by the pursuer in that regard. In cross-examination, the pursuer himself agreed that, to the extent that it intimated an apology, was a response to an allegation of lying, and had proposed two alternative options as to how matters should proceed, the letter was, viewed from an employer's perspective, appropriate in its terms.

[70] The second letter on which the pursuer places particular reference, that of 29 August 2006, was, as is clear from the terms of the first paragraph quoted above, written in recognition of the on-going exchange of correspondence but with the stated intention of bringing it to an end. Mrs Moncrieff, in cross-examination, confirmed that she understood the letter to have been written in response to her letter, dated 19 August 2006, to the first defender. The second quoted paragraph in effect restated the second option proposed in the letter of 16 August 2006. In submissions, that paragraph was characterised as an attempt to persuade the pursuer to disregard medical advice and part of a letter which no reasonable employer would have written. I am not persuaded that such an assessment is appropriate. Rather, my view is that it should be read against the background of the letter of 16 August 2006. In that regard, I apply my comments made in relation to the second option offered by that letter, equally to the letter dated 29 August 2006.

[71] The third letter on which the pursuer places particular reliance is that dated 19 September 2006. At the date of that letter, the pursuer had been absent from work for 16 weeks and 6 weeks had passed since the date of the Fitness for Work Statement which had indicated that he it was unlikely that the pursuer would be fit for work until some 2 to 3 months after 4 August 2006. That estimate was broadly consistent with the view expressed by the pursuer's GP, as set out in the letter by Cheviot Artus Plc, dated 9 August 2006, to the effect that a return to work within the next 2-3 months might have been possible. The letter was therefore written at a point roughly halfway through the upper end of the predicted range of absence. Viewed objectively, the letter is a request for a meeting, the only purpose of which was to be a discussion about the prospects of the pursuer returning to work. I accept that the pursuer found the letter to be particularly distressing, but I also note that the terms of the letter were entirely consistent with the recommendation made in the Fitness for Work Statement that a phased return should be discussed with the pursuer prior to his returning to work.

[72] It was submitted that the first defender should not have written to the pursuer at all or that, if it was reasonable for her to do so, she should not have written in the terms which she did. In the context of an employer/employee relationship, I cannot accept the former proposition. I consider that it was appropriate for the first defender to write to the pursuer in order to be informed of the detail of his likely return to work and no doubt to ensure that an audit trail was established to demonstrate that, as responsible employers, the defenders at the very least had recognised his position as an employee unfit for work and the possible consequences of that. As regards the second proposition, I consider that the terms of the letter by the first defender should be assessed in the context of the series of correspondence as a whole.

[73] In determining whether it was unreasonable for the first defender to write the letters complained of as she did, I accept that they must be judged on the basis of what she knew about the pursuer's particular susceptibility at the relevant time. I have no doubt that at the time of writing of the letters of 16 and 29 August and 19 September 2006, the first defender knew that the pursuer was depressed, but it would be inappropriate to ascribe to her the nuanced and informed knowledge of that condition which would be held by a psychiatrist. What the first defender knew was that the pursuer had been suffering from anxiety caused by family problems and had then been diagnosed with depression in relation to which it was said that his response to the counselling interview file note had "a contributory effect on his mood". Against that, the pattern of subsequent correspondence reveals the pursuer as a man in a possibly combative, certainly assertive, frame of mind. Of the correspondence quoted above, in all six letters were written to the first defender, four by the pursuer himself and two on his behalf by his wife. Of these, three of the letters sent by the pursuer expressly invited a response from the first defender. The first defender wrote seven letters to the pursuer. Of these, three, including two of the three on which the pursuer places particular reliance, were direct responses to specific letters written to her: her letter of 19 July was a reply to his letter of 14 July, her letter of 16 August was a reply to his letter of 31 July, and her letter of 29 August was a reply to a letter by Mrs Moncrieff dated 19 August 2006.

[74] It is significant that in these written exchanges, the pursuer was himself an active correspondent who initiated the highlighting of issues, which I consider a responsible employer would be required to address, and who was not shy of expressing himself in assertive and even combative terms. Although Dr Matson thought that the tone and content of the letters by the first defender were such that they would have been found to be upsetting by anyone, I prefer the view of Dr Carson that the letters comprised examples of correspondence which were not such as would have been expected to have been troubling, even for someone suffering from depression, could not have been regarded as likely to have an adverse impact on recovery, and in relation to which the pursuer's reaction was beyond what would have been expected.

[75] I am conscious that the matter is one of fact and degree and that some who suffer from depression may as a result be more vulnerable than others. I take into account Dr Matson's appreciation of the pursuer's personality as assessed without the complication of the effect of depression. I also take into account Dr Carson's analysis that of the two possible causes of the pursuer's particular response to the first defender's letters, one was that it was shaped by the nature of the effect of his existing condition and the other was that the pursuer was in fact justified in his view that the content of the letters was falsified and malicious. For the reasons I have stated, I do not accept that the pursuer was entitled to form such a view. I am persuaded by Dr Carson's analysis that the pursuer's reaction to the first defender's letters was not brought about by reason of their terms but rather by the effect of the condition from which he was already suffering. Whilst I derived some support from Dr Carson's opinion that viewed medically or psychiatrically, the letters appeared innocuous, my own assessment of their tone and content, having regard to the whole facts and circumstances comprising the context of these written exchanges, and given the relationship between the correspondents, is that the letters, and in particular those of 16 and 29 August and 19 September 2006, were unremarkable in their terms and were what would be expected from a responsible employer acting as a lay person without the benefit of informed psychiatric experience. On that basis, fortified by expert psychiatric opinion, which I accept, to the effect that the letters could not have been expected to produce the reaction which in fact occurred, I find that the pursuer has failed to prove his contention that it was or should have been reasonably foreseeable to the first defender that the manner in which she wrote to him would render his condition more chronic. I am not persuaded that by writing the letters as she did, even on a cumulative assessment of them, the first defender's actions were in breach of the duty of care which was owed to the pursuer.

[76] Having determined the principal issue in the case on that basis, it is unnecessary for me to attach weight to evidence of what, in applying Lord Rodger's dictum in Barber (supra), the first defender could otherwise have done. Had I been required to do so I would have favoured Dr Carson's assessment that only a full retraction of the criticism set out in the counselling interview file note would have ameliorated the situation. I would also have preferred his evidence that, for the reasons which he gave, it was unlikely that in any circumstances the pursuer would have been fit to return to work by the end of July 2006.

Loss

[77] It was agreed, given that the extent of any patrimonial loss suffered by the pursuer could be calculated only following a decision in his favour which determined specifically when he might otherwise have returned to work, that following such a decision, the case should be put out by order. In the light of my decision any such consideration is superseded. For completeness, however, I add that, had I been required to do so, I would have found that any patrimonial loss suffered by the pursuer would have ceased in May 2007 when he commenced employment with Doosan Babcock Energy Limited. Although I accept that other subsequent occurrences, such as difficulties involving legal aid and the decision by the Employment Appeal Tribunal, did have an adverse impact on him, it appeared to me that he was, from that time, fit and able to work and that accordingly any delay in his recovery had by that time been dissipated.

Decision
[78] In the event, I find against the pursuer and pronounce decree of absolvitor. I repel the pursuer's first, second and third pleas-in-law, sustain the defenders' first plea-in-law and reserve, meantime, all questions of expenses.